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Poster: HektorT Date: Apr 14, 2011 5:47am
Forum: feature_films Subject: Re: How to spot copyrighted films

Everybody who is using the copyright information found here in this forum, in any sort of professional capacity should really take note of the fact that these are only rough guidelines. See Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1242 n.38 (3d Cir. 1986) (‘Copyright Office circulars are not technical documents, but are “intended to present simple explanations of the law,” for lay persons.’).”

Coming from an IP lawyer, the world seems radically different and as I've noted elsewhere, lawyers in this area rarely give any definitive answers and few of the copyright issues ever seem as black and white as some people here like to paint them.

I recently contacted an Intellectual Property lawyer who publishes extensively on copyright issues regarding a couple of questions and he gave me a comprehensive answer, as well as pointing out some additional potholes that could be encountered.

Most notably:

- When I asked if a work is registered in the copyright office and entered into the copyright records, does that carry any legal weight? The answer was no, the courts have ruled that the role of the copyright office is similar to that of the postmaster and their job is not to interpret the law where courts have not ruled on it before. If a work that is registered does not meet copyright requirements then it can have its registration repealed.

- Additionally he notes that the Catalog of Copyright entries does not include records that have been updated after it is published. An example would be repealed Renewal Registrations, that were initially accepted, but then rejected for some fault in the renewal registration or the original registration. In this case sometimes only the Library of Congress has accurate records. The Catalog of Copyright entries is not updated after the fact.

- Also he emphasizes that copyright notices must not only be valid, they must have an accurate date. This means that the film cannot be published before the date contained in the copyright notice, otherwise the notice is invalid. When the notice pre-dates the actual publishing date, the notice is valid but the date in the notice is operational concerning the renewal date.

- Finally (you won't like this one) one grey area is the 1992 law which affected post 1963 works and allowed them to be granted statutory copyright without having been registered (if they have a valid notice). Prior to that time, the 1964 law was in effect which required "Prompt Registration". So he said that works published between 1964-1977 but that were not registered "promptly" (for example works that passed the entire first 28 years without being registered and then were subsequently renewed and had the initial registration filed at the same time due) have been interpreted as losing copyright protection due to failure to file promptly.

So in my opinion some of the lengthy debates that go on in this forum concerning whether or not something that is generally considered "Public Domain" is really public domain, based on information concerned in copyright office circulars and assorted circumstantial evidence are neither here nor there.

On the one hand, unless somebody orders a Copyright Search by the Copyright office, there is no guarantee that you have all the relevant registration information. On the other hand, even if you do have the relevant info, US law is interpreted according to precedents (in other words you need to be familiar with past rulings to know what something like "filing promptly" means).

So if you want to argue with that Video Cellar ... or Moongleam, eat your hearts out, I'm just the messenger. I'm sure any US Intellectual Property Law attorney will oblige you. But if you're looking for Black & White answers to legal questions, I think they may be difficult to find.

This post was modified by HektorT on 2011-04-14 12:47:06

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Poster: billbarstad Date: Apr 14, 2011 7:02pm
Forum: feature_films Subject: Re: How to spot copyrighted films

I certainly believe that "lawyers in this area rarely give any definitive answers and few of the copyright issues ever seem as black and white as some people here like to paint them." I've heard that elsewhere, and I believe it. IP law may be as confused and nebulous as tax law, but we have to have something to go by.

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Poster: garthus Date: Apr 15, 2011 10:25am
Forum: feature_films Subject: Re: How to spot copyrighted films

With some exceptions generally before 1963, the work had to be registered and renewed. I do not see a problem with this. Actually many pre-1964 works are in the public domain. Where are all the scholarly arguments for that. While their may be issues with foreign producers,in general the rules are pretty simple.

Gerry

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Poster: HektorT Date: Apr 15, 2011 11:37am
Forum: feature_films Subject: Re: How to spot copyrighted films

I don't think people are discussing those films much. There is general agreement in that area for US films.

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Poster: HektorT Date: Apr 15, 2011 4:12am
Forum: feature_films Subject: Re: How to spot copyrighted films

@Bilbarstad: Yes I agree with you 100%. I just wrote the above post because when I first came to this forum about 2 years ago, the copyright discussions were like: registered, renewed or no notice. Now in a few cases they've gone off the deep end, trying to give scholarly-like explanations that can't hold water.

What would be extremely useful in this forum is a sticky post saying something like: Archive.org accepts posting of works in the Public Domain or that have a Creative Commons license. For the purposes of this site that is defined as : { list of requirements, like not renewed, no notice etc }
That would make matters really simple and not confuse people who just want to post and don't want to spend a couple of weeks studying in order to do it.

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Poster: Video-Cellar Date: Apr 15, 2011 5:34am
Forum: feature_films Subject: Re: How to spot copyrighted films

They do have this here. It gives you simple guidelines and the suggestion to ask a question in the forums if you are still not sure. The archive's official position on films where "the copyright notice is 1964 or later" appears to be that "the copyright is probably still valid and the film should not be uploaded unless you are the copyright holder."

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Poster: HektorT Date: Apr 15, 2011 11:36am
Forum: feature_films Subject: Re: How to spot copyrighted films

That looks like exactly what's needed, although it should say the notice needs a valid date.

If they put a link next to the upload button like:

"what can I upload" that would be very helpful I think.

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Poster: Video-Cellar Date: Apr 14, 2011 5:37am
Forum: feature_films Subject: Re: How to spot copyrighted films

- Finally (you won't like this one) one grey area is the 1992 law which affected post 1963 works and allowed them to be granted statutory copyright without having been registered (if they have a valid notice). Prior to that time, the 1964 law was in effect which required "Prompt Registration". So he said that works published between 1964-1977 but that were not registered "promptly" (for example works that passed the entire first 28 years without being registered and then were subsequently renewed and had the initial registration filed at the same time due) have been interpreted as losing copyright protection due to failure to file promptly. He added that the copyright office was soliciting comments on this issue during the past few years (perhaps to emphasize this point -- don't ask me about this, I'm not close to being competent to comment on it).

Prompt filing/registration has almost always been a requirment for the full legal remedies for an infringement. However, it has not been a requirement to "secure" copyright for well over 60 years. At the time the revisions to the Copyright Act that came into effect on June 30 1947 the first term of 28 years copyright was secured by:

§ 10. PUBLICATION OF WORK WITH NOTICE.—Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section 22 of this title.

While not promptly registering would automatically take the oportunity to renew away, it did not effect the work published with a notice's first 28 year term of copyright. The 1976 Act changed that for all works still in their first term at commencement. This was all works published 1950 onwards.

The 1976 act allowed works still in their first term the opportunity to register and renew copyright at any time up until the end of the 28th calendar year after publication or date-in-notice, in the case of pre-dated copyright notices. All works published 1950-1977 were afforded this provision (renewal terms are not relevant to works created and published after the 1976 act came into effect.) This was further expanded in 1992 by the automatic renewal provisions and the ability to register a work at any time during its initial or renewal terms.

So all films published with a valid notice between 1950 and 1963 and registered and renewed by the end of their 28th year of copyright protection remained protected. But, there is little basis for the argument that copyright was not automatically renewed in unregistered 1964-1977 films when the changes to the law had essentially provided a situation were both registration and renewal were not legally required to secure either the intial 28 year term or the renewal/extension term.

Also, just on the issue of the value of the Catalogue of copyright entries. This was effect in law all the way up until the 1976 Act came into effect and, as we only use CCO volumes from the period before that, it is directly relevant to our use:

§ 210. CATALOG OF COPYRIGHT ENTRIES; EFFECT AS EVIDENCE.—The Register of Copyrights shall fully index all copyright registrations and assignments and shall print at periodic intervals a catalog of the titles of articles deposited and registered for copyright, together with suitable indexes, and at stated intervals shall print complete and indexed catalog for each class of copyright entries, and may thereupon, if expedient, destroy the original manuscript catalog cards containing the titles included in such printed volumes and representing the entries made during such intervals. The current catalog of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright registration.

As the volumes were created after the fact they often do not include renewals repealed on checking. Personally, when I look at films for copyright status I always test the CCO information by checking the date of the original registration as well as the date in notice for discrepancies, and any other factors that might come into play to annul the renewal registration. It is commonsense to do this, even with post 1950 works were further documents including canceled renewals are available in the datatbase.

And just on the acuracy of dates-in-notice, which has be discussed here before. The legislation and case law allows for one years post dating to be acceptable as valid. It should also be noted that until 1978 "Motion pictures other than photoplays" (i.e. documentaries, news films, musical performances, etc) did not require a date-in-notice at all - only the statement, symbol or abreviation of copyright and the owner's name.

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Poster: HektorT Date: Apr 15, 2011 4:44am
Forum: feature_films Subject: Re: How to spot copyrighted films

@videocellar: Apparently you agree with everything the lawyer said, except regarding post-dated notices, and are posting evidence here to back it. So then it is just a question of legal interpretation, which you have said is beyond your area of expertise. And which any two given Federal judges will quite likely interpret differently.

re: post-dated notices, I've seen it written in many places as well as in case law that a post-dated notice is an invalid notice.

This post was modified by HektorT on 2011-04-15 11:44:11

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Poster: Video-Cellar Date: Apr 15, 2011 4:34am
Forum: feature_films Subject: Re: How to spot copyrighted films

Not entirely I disagree with almost everything your "IP lawyer" has told you.

- I don't agree that the copyright office's records hold no legal weight and supplied a legislative reference for the position that they are admissible prima facie evidence in court.

-I also do not believe that there is any genuine legal debate about the validity of copyright in unregistered or renewed works published between 1964 and 1977. Mostly because the legislation provided for protection without registration and that all case law on the validity of the granting of late registration (1976) and automatic renewal (1992) has ruled in favour of the legislation. These issues have been tested and found to be lacking in weight.

Errors in Dates:
I have been studying copyright case law recently. Most of the really important rulings about dates-in-notice were quite early rulings. One early case ruled that an abbreviated date (ie Copr. '64 ABC Inc) was acceptable, another ruled that Roman numerals were acceptable, another cemented the importance of a notice being one continuous grouping of the required information. These rulings all date from 100 years ago and are still used as precedents.

The legislation itself allows for a pre-dated works' term to begin at the date-in-notice and gives up to one year for post dating (the date must be "more than one year" after publication to be invalid, under the law.) The explicit nature of the law makes this a general rule with little leeway for judicial "interpretation".

§ 406. Notice of copyright: Error in name or date
(b) ERROR IN DATE.—When the year date in the notice on copies or phonorecords distributed by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 302 is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without any notice and is governed by the provisions of section 405.

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Poster: HektorT Date: Apr 15, 2011 3:23pm
Forum: feature_films Subject: Re: How to spot copyrighted films

@videocellar: well, although i have published "works" and worked with IP lawyers on many occasions, I don't believe my opinion has any place in any serious legal discussion. So I'll leave it to you to say what you will. I've given the caveat emptor, and while we are on the subject of Latin, you might look up the definition of prima facie as it is only evidence at first site, not incontrovertible evidence.

Sorry, but no more time for this.

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Poster: Video-Cellar Date: Apr 15, 2011 5:39pm
Forum: feature_films Subject: Re: How to spot copyrighted films

I understand the direct transalation of the latin term prima facie - "first face". In legal practice it has a slightly different meaning. It means any type of evidence that on its own can outline or represent the core facts of a case and form the basis for a prosecutable case. No one said or implied that they Catalog of Copyright Entries is irrefutable and can not be tested. On the contrary, I stated that copyright office documentation on a film should not be taken at face value and should be combined with further research and documentation. However, you stated that the CCE holds "no" legal weight, which is plainly wrong as it is admissible as a form of primary evidence to base a case on, which is then tested in the litigation. Sorry if I didn't adequately explain this before but, even after years of formal and informal study of the law, I sometimes find it difficult to simplify this stuff and get the whole point accross.

This post was modified by Video-Cellar on 2011-04-16 00:39:23

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Poster: HektorT Date: Apr 16, 2011 6:32am
Forum: feature_films Subject: Re: How to spot copyrighted films

Sure if you take what I said out of context, in that sense you are lawyer-like videocellar. My problem with this type of discussion that you like to devolve into to win a point, is that I make a comment using normal everyday language and then you go all Perry Mason and try to dissect it from a legal point of view, quoting a raft of legal minutiae, whereas I find it rare that legal profesionals will venture to offer a legal opinion on something which they have not had a chance to fully examine.

This post was modified by HektorT on 2011-04-16 13:32:26